Citation Nr: 0620686
Decision Date: 07/17/06 Archive Date: 07/26/06
DOCKET NO. 04-18 773 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to separate 10 percent ratings for tinnitus in
each ear.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The appellant had active military service from June 1944 to
January 1946. This case comes before the Board of Veterans'
Appeals (Board) on appeal from a June 2003 rating decision
issued by the Department of Veterans Affairs (VA) Regional
Office (RO) in Muskogee, Oklahoma that, in part, granted
service connection for tinnitus and assigned a 10 percent
disability rating.
On June 9, 2005, a Deputy Vice Chairman of the Board ruled
favorably on the motion to advance this case on the docket
based on a finding of good cause, namely the advanced age of
the appellant. 38 C.F.R. § 20.900(c).
FINDING OF FACT
The appellant is service-connected for bilateral tinnitus and
he has been assigned a 10 percent evaluation for that
disability; ten percent is the maximum rating authorized
under Diagnostic Code 6260.
CONCLUSION OF LAW
Entitlement to separate compensable ratings for tinnitus in
each ear is not warranted; such a claim is without legal
merit. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321,
4.25, 4.87, Diagnostic Code 6260 (2005); Smith v. Nicholson,
No. 05-7168, --- F.3d. --- , 2006 WL 1667936 (C.A. Fed
June 19, 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duty to Notify and Assist
VA has specified duties to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. VA must notify the veteran of evidence and
information necessary to substantiate his claim and inform
him whether he or VA bears the burden of producing or
obtaining that evidence or information. 38 U.S.C.A.
§ 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29,
2001) (codified as amended at 38 C.F.R. § 3.159(b));
Quartuccio v. Principi, 16 Vet. App. 183 (2002). However the
United States Court of Appeals for Veterans Claims (Court)
has held that the statutory and regulatory provisions
pertaining to VA's duty to notify and to assist do not apply
to a claim if resolution of that claim is based on statutory
interpretation rather than on consideration of the factual
evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001).
In this case, the facts are not in dispute. Resolution of
the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of disability
ratings for tinnitus. As will be shown below, the Board
finds that the appellant is already receiving the maximum
disability rating available for tinnitus under the applicable
rating criteria. Furthermore, regardless of whether the
appellant's tinnitus is perceived as unilateral or bilateral,
the outcome of this appeal does not change.
Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
notice or assistance by VA are rendered moot. See
38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362,
368 (2001) (compliance with the VCAA is not required if no
reasonable possibility exists that any notice or assistance
would aid the appellant in substantiating the claim).
Furthermore, the provisions of the VCAA have no effect on an
appeal where the law, and not the underlying facts or
development of the facts are dispositive in a matter.
Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).
The Merits of the Claim
The appellant contends that the initial rating assigned for
his service-connected tinnitus was incorrect and that a
separate rating of 10 percent for each ear should be
assigned. The appellant's tinnitus is currently rated 10
percent disabling under 38 C.F.R. § 4.87, Diagnostic Code
6260. Diagnostic Code 6260 provides a maximum 10 percent
rating for tinnitus.
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the Court
held that the pre-1999 and pre-June 13, 2003 versions of
Diagnostic Code 6260 required the assignment of dual ratings
for bilateral tinnitus. VA appealed this decision to the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) and stayed the adjudication of tinnitus
rating cases affected by the Smith decision. In Smith v.
Nicholson, No. 05-7168, --- F.3d. --- , 2006 WL 1667936 (C.A.
Fed June 19, 2006), the Federal Circuit concluded that the
Court erred in not deferring to the VA's interpretation of
its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code
6260, which limit a veteran to a single disability rating for
tinnitus, regardless of whether the tinnitus is unilateral or
bilateral. Subsequently, the stay of adjudication of
tinnitus rating cases was lifted.
Thus, 10 percent is the maximum rating available for tinnitus
whether it is unilateral or bilateral. Therefore, the
assignment of separate compensable evaluations for each ear
is not permissible. The appellant's service-connected
tinnitus has been assigned the maximum schedular rating
available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code
6260. As there is no legal basis upon which to award
separate schedular evaluations for tinnitus in each ear, and
as the disposition of this claim is based on the law and not
the facts of the case, the claim must be denied based on a
lack of entitlement under the law. Sabonis v. Brown,
6 Vet. App. 426 (1994).
ORDER
The assignment of separate 10 percent ratings for tinnitus in
each ear is denied.
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VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs